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Wednesday, April 7, 2010 as of 11:14 AM ET


Lee Ross

Supreme Court


Christian Case Could Impact Obama Pick

April 16, 2010 - 10:19 AM | by: Lee Ross

Christian Case Could Impact Obama Pick

For the second consecutive year, the Supreme Court is about to hear arguments in a case that could have a direct impact on the prospects of someone who is on President Obama’s short list of candidates for appointment to the high court.

The justices on Monday will hear arguments in a controversial First Amendment case from San Francisco that is nearly identical to one Judge Diane Wood heard as a judge on the Chicago-based Seventh Circuit U.S. Court of Appeals. Obama interviewed Wood for last year’s high court opening and is believed to be considering her again as a replacement for retiring Justice John Paul Stevens.

Wood’s 2006 case and the current dispute in front of the Supreme Court center on the ability of law school students affiliated with the Christian Legal Society (CLS) to join together and form school-sanctioned campus chapters. CLS is a national organization of lawyers, law students and others who “share a common faith and seek to honor Jesus Christ in the legal profession.”

Carrie Severino, policy director for the conservative Judicial Crisis Network, draws the comparison between the CLS case and the situation now Justice Sonia Sotomayor faced during last year’s confirmation process. “If Diane Wood is nominated to the Supreme Court, the CLS case could be her Ricci,” Severino said in referring to Ricci v. DeStefano, last year’s affirmative action case that drew so much attention to Sotomayor. “If the Supreme Court rules for the Christian Legal Society….Judge Wood will have an uphill battle to convince the Senators and the American people that she is in the judicial mainstream.”

Last year, the justices heard a highly-charged discrimination case a few weeks before Obama made Sonia Sotomayor his first Supreme Court selection.

As an appellate judge, Sotomayor ruled against a group of predominately white firefighters from Connecticut who then won their case in front of the Supreme Court while Sotomayor’s nomination was pending before the Senate. It was an embarrassing though not crippling reversal for Sotomayor who was later confirmed.

The current controversy revolves around CLS’s Statement of Faith and its requirement that voting members and club officers adhere to that pledge. In 2004, CLS concluded that “unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” CLS considers premarital sex and all homosexual conduct immoral.

Monday’s case examines the University of California’s Hastings College of the Law decision to deny official recognition of the CLS chapter based on its conclusion that the CLS Statement of Faith violated the school’s nondiscrimination policy. In short, the university argues CLS does not allow gays to become voting members and therefore will not give official recognition (and the privileges that come with it) to the CLS students.

CLS students at Hastings filed a lawsuit in an attempt to force the school to grant their chapter official recognition. So far they have been unsuccessful and now argue to the Supreme Court that the school is violating their First Amendment rights.

“For Hastings College of the Law to force the CLS chapter to admit nonadherents to its leadership and voting ranks-on pain of exclusion from an otherwise open speech forum-violates Petitioner’s rights of speech, expressive association, and free exercise of religion,” lawyer Michael McConnell wrote in his brief to the Supreme Court on behalf of the CLS students.

The school’s lawyer argues Hastings is doing nothing more than enforcing its open-membership policy and that the CLS students on its campus are not harmed by a lack of formal recognition. “Religious student groups have for decades been an important part of Hastings’ educational community and remain so today,” Gregory Garre, wrote in his brief to the Court. “But no student group is entitled to a special ‘exemption’ from Hastings’ neutral and generally applicable open-membership policy.”

Wood’s 2006 case is nearly identical to the one pending in the Supreme Court, only the lawsuit Wood considered came from CLS students at Southern Illinois University. Over her dissent, a three judge panel of the Seventh Circuit ruled that a preliminary injunction should have been issued to force the school to recognize the student chapter. The case was then favorably settled in the students favor.

But Wood felt the school was within its rights not to recognize the CLS chapter under its nondiscrimination policy. “If such an organization (here CLS) discriminates on any basis forbidden by the policy, it is subject to corrective measures. This is enough, in my view, to tip the balance [in the school's favor].”

Under her view of the case, Wood believed that CLS would still have been free to adopt whatever policies it wanted just without the privileges that come with official recognition. “Nothing SIU has done infringes on CLS’s freedom of expressive association,” Wood wrote.

“Underneath the surface of her dissent, everyone recognizes that she thinks the homosexual agenda is more important than the First Amendment,” CLS lawyer Greg Baylor told Fox News. Baylor argued the Seventh Circuit case before Wood where he objected to comments Wood made during oral arguments that he felt were dismissive of CLS’s position.

In reviewing the ruling and Wood’s dissent, Ayesha Khan, Legal Director at Americans United for Separation of Church and State, says CLS should not have won. “I thought Judge Wood got it exactly right,” Khan says adding that Wood’s approach to the case was “far more conscientious and cautious” that the two other judges who formed the majority ruling.

A decision in the Hastings case isn’t expected until June. The breadth of a potential ruling from the high court could have a huge impact not just on college campuses but over vast parts of society that are covered by discrimination policies.

The justices will hear arguments in CLS v. Martinez Monday morning.

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